“I Promise To Always Do My Best…”
We all have a Duty of Care to our clients…
When we take on the role of advising clients we strive to ensure that we do the very best for our clients and the advice we provide is exemplary, but are we really doing enough to protect our clients and ourselves when drafting Wills?
Under the STEP Code for Will preparation, it clearly states that as part of the Will drafter’s duty of care they are required to:
- Take adequate notes of the client’s instructions and the advice that they have given to the client and preserve these notes in the Will file.
- Provide the client with a record of the Will instructions, usually by way of a copy of an attendance note, fact find or questionnaire (or failing that by letter). Where this is not possible, then the client must be provided with a draft or copy Will ahead of being asked to execute the final document, with the opportunity to ask questions or seek explanations before execution of the Will. Where time constraints make this impossible, a greater onus is placed on the Will drafter to provide explanations and encourage questions from the client.
The importance of contemporaneous written evidence
Most professionals are only too familiar with having to compile a letter or a report detailing the client’s requirements and surrounding circumstances and so, justifying the recommendations made. With the readiness of family members opposing a relative’s last wishes being reflected in official court statistics showing that such disputes are on the rise, ensuring that there is a fully documented account of events, ready and waiting, has never been more important.
These types of claims are fact sensitive and any court is likely to place significant emphasis on contemporaneous written evidence of things said and decisions made and the reasons for them.
Whilst adhering to the above provides no guarantee that a claim will not be bought, the prospects of success of any such claim are likely to be significantly diminished by doing so (and consequently another party pursuing a claim to trial less likely).
How do you comply with this?
A clients’ Will only really describes WHAT they wish to do with their estate, and doesn’t include any of their deciding factors or circumstances surrounding the Will drafting and execution, which may be questioned at a later date. The challenges come from disgruntled beneficiaries who do not understand the WHY.
Many Solicitors and Will writers rely on the notes made during the instruction taking process, and retaining them with the Will file. This is fine as long as:
- You are confident that nothing could ever be omitted during the instruction taking process which you may rely upon later.
- Your memory of events will never fail you.
- Where notes are hand written that they cannot become lost or damaged and they can be read and fully understood long after the event.
- You are happy that continuing to spend your own time transposing client notes into your Will drafting system is an appropriate use of your time.
- Where Will files are passed to a member of staff to complete, you are confident in their ability to read and interpret the notes appropriately.
- Now more than ever, Will writing firm need to ensure that they have a robust, systematic process in place ensuring the same procedures are followed each and every time, to protect both your clients and your business.
- Even if you are completely happy with the system you currently use is it the best in terms of time and money? Without this, have you considered the cost to you and your clients?
There is a better way
Even if you do feel that you are working in the right way doesn’t mean that there isn’t a better way.
Countrywide Legacy’s Will Clarity Package software package ensures that you automatically compile and electronically store all the information required to protect your clients and to be able to fully respond to a Larke v Nugus request. By seamlessly steering you through the questions incorporated into the instruction taking process, the Will Clarity statement and the Execution statement, means that you will never miss out relevant information and always have an accurate and comprehensive record of your client meetings, ultimately protecting your business whilst doing right by your clients and giving the “deceased a voice” and a faster and more professional service.
Would you rather have “some of the information, some of the time, or all of the information, all of the time?”
Which one do you think your Professional Indemnity Insurers would prefer?
For such a small cost, using our Will Clarity Statement package means you can offer your clients better protection and a better, faster and more streamlined service, whilst protecting your business at the same time.
Although there is no way to eliminate the possibility of a challenge to your Will after you die, ensuring that you have taken positive steps to discourage such a challenge would make it more difficult for a claimant to succeed.